Citation Nr: 0711126
Decision Date: 04/16/07 Archive Date: 05/01/07
DOCKET NO. 02-10 874A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manila,
the Republic of the Philippines
THE ISSUES
1. Entitlement to an increased evaluation for dislocated
jaw, currently evaluated as 40 percent disabling.
2. Entitlement to a compensable evaluation for missing teeth
2 through 9.
3. Entitlement to an initial evaluation in excess of
30 percent for Meniere's Disease.
4. Entitlement to special monthly compensation based on a
need for regular aid and attendance or on housebound status.
5. Entitlement to an effective date earlier than July 28,
1998, for the award of service connection for Meniere's
Disease
6. Entitlement to service connection for inner ear
infection.
7. Entitlement to service connection for left knee
disability.
8. Entitlement to service connection for a left ankle
disability.
9. Entitlement to service connection for a left foot
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and wife
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty from February 1960 to June
1963.
This case come before the Board of Veterans' Appeals (Board)
on appeal from multiple rating decisions of the Manila, the
Republic of the Philippines, Department of Veterans Affairs
(VA) Regional Office (RO).
In July 2006, the veteran and his wife testified at a
personal hearing before the undersigned Veterans Law Judge.
A transcript of that hearing has been associated with the
claims file. At the hearing, the veteran submitted
additional evidence and waived initial consideration of that
evidence by the agency of original jurisdiction. Therefore,
the Board may consider this evidence in the first instance.
See 38 C.F.R. § 20.1304(c) (2006).
In statements submitted by the veteran, he has alleged that
clear and unmistakable error occurred in assigning an
effective date of July 28, 1998, for the award of service
connection for Meniere's Disease. The RO has not considered
his claim. As this claim has been neither procedurally
prepared nor certified for appellate review, the Board is
referring it to the RO for initial consideration and
appropriate action. Godfrey v. Brown, 7 Vet. App. 398
(1995).
FINDINGS OF FACT
1. Dislocated jaw is currently manifested by limitation of
the temporomandibular joint and no bone loss.
2. Missing teeth 2 through 9 can be and are replaced with a
prosthesis.
3. Meniere's Disease is manifested by dizziness and
occasional staggering, bilateral tinnitus, and bilateral
hearing loss.
4. The veteran is not bedridden, blind, or nearly blind, and
is not institutionalized in a nursing home on account of
service-connected physical or mental disability.
5. The probative and competent medical evidence of record
establishes that the veteran does not suffer from symptoms
and manifestations of service-connected physical and/or
mental incapacity which renders him helpless and in danger in
his daily environment thereby requiring the regular
assistance of another individual on a daily basis to
accomplish personal self-care.
6. The veteran does not have a service-connected disability
that is ratable at 100 percent and his service-connected
disabilities do not substantially confine him to his dwelling
or immediate premises.
7. Service connection for Meniere's Disease was denied in a
May 1993 rating decision. The veteran did not appeal that
decision, and it became final.
8. On July 28, 1998, VA received an application to reopen
the claim for service connection for Meniere's Disease.
9. There was no formal claim, informal claim, or written
intent to file a claim for service connection for Meniere's
Disease between the May 1993 rating decision and the July
1998 application to reopen.
10. Competent evidence of current inner ear infection is not
of record.
11. The Board finds that the preponderance of the evidence
is against a finding that a current left knee disability,
diagnosed as arthritis, is attributable to a service-
connected disability.
12. Competent evidence of current left ankle disability is
not of record.
13. Competent evidence of current left foot disability is
not of record.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 40 percent
for dislocated jaw have not been met. 38 U.S.C.A. §§ 1151,
5107 (West 2002); 38 C.F.R. § 4.150, Diagnostic Code 9905
(2006).
2. The criteria for a compensable evaluation for missing
teeth 2 through 9 have not been met. 38 U.S.C.A. §§ 1151,
5107 (West 2002); 38 C.F.R. § 4.150, Diagnostic Code 9913
(2006).
3. The criteria for an initial combined evaluation of
40 percent for Meniere's Disease have been met. 38 U.S.C.A.
§§ 1151, 5107 (West 2002); 38 C.F.R. § 4.87, Diagnostic Codes
6100, 6204, 6260 (2006).
4. The criteria for special monthly compensation based on
the need for regular aid and attendance or on housebound
status have not been met. 38 U.S.C.A. §§ 1114(l)(s), 5107
(West 2002); 38 C.F.R. §§ 3.350, 3.352 (2006).
5. The criteria for an effective date earlier than July 28,
1998, for the award of service connection for Meniere's
Disease have not been met. 38 U.S.C.A. §§ 5107, 5110 (West
2002 & Supp. 2006); 38 C.F.R. § 3.400 (2006).
6. Inner ear infection is not due to, the result of, or
aggravated by limited motion of the temporomandibular
articulation. 38 U.S.C.A. §§ 1110, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.310 (2006); Allen v. Brown, 7 Vet.
App. 439 (1995).
7. Left knee disability is not due to, the result of, or
aggravated by limited motion of the temporomandibular
articulation. 38 U.S.C.A. §§ 1110, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.310 (2006); Allen v. Brown, 7 Vet.
App. 439 (1995).
8. Left ankle disability is not due to, the result of, or
aggravated by limited motion of the temporomandibular
articulation. 38 U.S.C.A. §§ 1110, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.310 (2006); Allen v. Brown, 7 Vet.
App. 439 (1995).
9. Left foot disability is not due to, the result of, or
aggravated by limited motion of the temporomandibular
articulation. 38 U.S.C.A. §§ 1110, 5107 (West 2002);
38 C.F.R. §§ 3.303, 3.310 (2006); Allen v. Brown, 7 Vet.
App. 439 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000)
(codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, and 5126 (West 2002 & Supp. 2006) redefined VA's duty
to assist the veteran in the development of a claim. VA
regulations for the implementation of the VCAA were codified
as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and
3.326(a).
The notice requirements of the VCAA require VA to notify the
veteran of any evidence that is necessary to substantiate his
claim, as well as the evidence VA will attempt to obtain and
which evidence he is responsible for providing. Quartuccio
v. Principi, 16 Vet. App. 183 (2002). The requirements apply
to all five elements of a service connection claim: veteran
status, existence of a disability, a connection between the
veteran's service and the disability, degree of disability,
and effective date of the disability. Dingess/Hartman v.
Nicholson, 19 Vet. App. 473 (2006). Such notice must be
provided to a claimant before the initial unfavorable
decision on a claim for VA benefits by the agency of original
jurisdiction (in this case, the RO). Id; see also Pelegrini
v. Principi, 18 Vet. App. 112 (2004). However, the VCAA
notice requirements may be satisfied if any errors in the
timing or content of such notice are not prejudicial to the
claimant. Id.
In this case, the veteran has filed multiple claims since
2000-claims for increase, claims for service connection, a
claim for special monthly compensation, and a claim for an
earlier effective date. Therefore, there are multiple VCAA
letters in the claims file pertaining to the various claims
that the veteran has filed. See VCAA letters issued in June
2001, September 2002, December 2003, August 2004, October
2004, and September 2005. Nevertheless, the Board finds that
the RO has properly provided notice to the veteran regarding
what information and evidence was needed to substantiate the
claims on appeal, as well as what information and evidence
must be submitted by the veteran, what information and
evidence will be obtained by VA, and the need for the veteran
to advise VA of and to submit any further evidence that was
relevant to the claim. Multiple supplemental statements of
the case reflect the RO's readjudication of the claims after
providing notice. See Mayfield v. Nicholson, 19 Vet.
App. 103, 128 (2005), reversed and remanded, 444 F.3d 1328
(Fed. Cir. 2006), affirmed, 20 Vet. App. 536 (2006); see
also, Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006)
(the issuance of a fully compliant VCAA notification followed
by readjudication of the claim, such as in a statement of the
case or supplemental statement of the case, is sufficient to
cure a timing defect). A September 2006 letter informed the
veteran how disability evaluations and effective dates are
assigned and the type of evidence which impacts those
determinations. Thus, all notice requirements were met.
It must be noted that based upon the veteran's arguments in
documents and those he made at the July 2006 hearing, it is
clear that he has actual knowledge of the evidence necessary
to substantiate his claims on appeal. He argues that his
service-connected disability are worse than the current
evaluations assigned. He states that Meniere's Disease was
shown prior to July 1998, which should provide him with an
earlier effective date. The veteran also argues that he
needs the assistance of someone else and is essentially
confined to his home due to his service-connected
disabilities. Finally, he alleges that he has developed
chronic ear infection and disabilities associated with his
left knee, left ankle, and left foot as a result of the
service-connected limited motion of the temporomandibular
articulation. Such arguments show he understands the types
of evidence needed for the claims on appeal.
The record reflects that VA has made reasonable efforts to
obtain relevant records adequately identified by the veteran.
Specifically, the information and evidence that have been
associated with the claims file consists of post-service
medical records, both VA and private, that VA has obtained
and the veteran has submitted, examination reports, and
transcripts of his hearings before the RO and the Board.
In summary, the VCAA provisions have been satisfied. Any
error in the sequence of events or content of the notice is
not shown to have any effect on the case or to cause injury
to the claimant. Thus, any such error is harmless and does
not prohibit consideration of these matters on the merits.
See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159
F.3d 534, 549 (Fed. Cir. 1998). The veteran has not claimed
that VA has failed to comply with the notice requirements of
the VCAA.
II. Increased Ratings
The veteran contends that he warrants increased ratings for
dislocated jaw, missing teeth, and Meniere's Disease.
Under the applicable criteria, disability evaluations are
determined by the application of a schedule of ratings which
is based on average impairment of earning capacity. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4 (2006). Separate
diagnostic codes identify the various disabilities. VA has a
duty to acknowledge and consider all regulations which are
potentially applicable through the assertions and issues
raised in the record, and to explain the reasons and bases
for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589
(1991).
As to the claim for increase regarding Meniere's Disease, the
veteran is contesting the disability evaluation that was
assigned at the time service connection was awarded. In
Fenderson v. West, 12 Vet. App 119 (1999), the United States
Court of Appeals for Veterans Claims (Court) recognized a
distinction between a veteran's dissatisfaction with an
initial rating assigned at the time service connection for a
disability is granted and a claim for an increased rating of
a service-connected disorder. In the case of the assignment
of an initial rating for a disability following an initial
award of service connection for that disability (the
circumstances of the present appeal as to the claim for
increase involving Meniere's Disease), separate ratings can
be assigned for separate periods of time based on the facts
found, which is called "staged" ratings.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
A. Dislocated jaw
The veteran was in an automobile accident while in service
and sustained injuries to his face, jaw, teeth, and tongue.
He sustained a fracture to his left mandible. Service
connection for limitation of motion of the temporomandibular
joint, residual of healed fractures of mandible, was awarded
in a November 1963 rating decision and assigned a
noncompensable evaluation from June 20, 1963. In July 1986,
the RO awarded him a 10 percent evaluation. In May 2000, he
was awarded a 40 percent evaluation. The veteran asserts
that he warrants an evaluation in excess of 40 percent and
that the service-connected disability has been
mischaracterized.
At the July 2006 hearing before the undersigned, the veteran
stated his jaw was out of joint and that he had been told by
a medical professional that his "bite" was the worst he had
seen. He stated he underwent multiple surgical procedures in
1985. The veteran asserted his jaw was shifting. The
veteran feels that his jaw has been improperly rated for
years and that he has far more symptoms than just limitation
of the temporomandibular joint.
Since service connection was awarded, the veteran's
disability has been rated under Diagnostic Code 9905. Under
that Diagnostic Code, the 40 percent evaluation is the
maximum evaluation, which is for inter-incisal range of 0 to
10 millimeters of the temporomandibular joint. See 38 C.F.R.
§ 4.150, Diagnostic Code 9905.
Based on multiple VA examinations throughout the appeal
period, the Board finds the veteran is not entitled to a
higher rating than the 40 percent evaluation he is currently
receiving. As noted above, he cannot obtain a higher
evaluation based upon inter-incisal range of the
temporomandibular joint. The service medical records show
that the veteran's mandible was affected in the automobile
accident. Under Diagnostic Codes 9903 and 9904, which
contemplate nonunion and malunion of the mandible, the
maximum evaluations are 30 and 20 percent, respectively. See
38 C.F.R. § 4.150, Diagnostic Codes, 9903, 9904. Thus, they
do not assist the veteran with obtaining an evaluation in
excess of the currently-assigned 40 percent.
Under Diagnostic Code 9902, it contemplates loss of
approximately one half of the mandible, which would warrant a
50 percent evaluation. See 38 C.F.R. § 4.150, Diagnostic
Code 9902. There is no competent evidence that the veteran
has loss of one half of his mandible. In fact, there is
evidence against such finding. For example, a May 1999
private CT scan shows that the right side of the mandible is
displaced, which is not a finding that the mandible is lost.
A July 2004 VA examination report shows that the examiner
made a specific finding that the veteran had no bone loss of
the mandible. As a result, this rules out consideration of
Diagnostic Code 9901, which contemplates complete loss of the
mandible. See 38 C.F.R. § 4.150, Diagnostic Code 9901. The
Board will not consider Diagnostic Codes that address the
ramus, as the service medical records do not show that such
was injured in the accident. See 38 C.F.R. § 4.150,
Diagnostic Codes 9906, 9907 (2006).
In addition, when assessing the severity of a musculoskeletal
disability that, as here, is at least partly rated on the
basis of limitation of motion, VA must also consider the
extent that the veteran may have additional functional
impairment above and beyond the limitation of motion
objectively demonstrated, such as during times when his
symptoms are most prevalent ("flare-ups") due to the extent
of his pain (and painful motion), weakness, premature or
excess fatigability, and incoordination-assuming these
factors are not already contemplated by the governing rating
criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-7
(1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59 (2006).
However, the veteran is at the highest evaluation for
limitation of motion of the temporomandibular joint, and thus
the analysis in DeLuca does not assist the veteran in
obtaining a higher evaluation. See Johnston v. Brown, 10
Vet. App. 80, 85 (1997) (Court concluded that remand for the
Board to consider functional loss due to pain was not
appropriate where the claimant was already receiving the
maximum disability rating available for limitation of
motion).
The Board also has considered whether the case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1) (2006). Although the veteran and his wife have
argued that the veteran is undercompensated for this
disability and that it has been mischaracterized, the
disability has not been shown to cause average industrial
impairment from the disability in excess of that contemplated
by the assigned 40 percent evaluation or otherwise render
application of the schedular criteria impractical, especially
since the veteran has not required frequent hospitalization
from the disability. Additionally, it must be noted that the
veteran is in receipt of a total rating for compensation
based upon individual unemployability. Thus, referral of
this case for extra-schedular consideration is not warranted.
See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v.
Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet.
App. 218, 227 (1995).
In sum, the preponderance of the competent, probative
evidence of record reflects that the veteran is not entitled
to a rating higher than 40 percent for his dislocated jaw
under any potentially applicable diagnostic code or based on
any other factors. The benefit-of-the-doubt doctrine is
therefore not for application, and the veteran's claim must
be denied. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A. §
5107(b) (West 2002); 38 C.F.R. § 3.102 (2006).
B. Missing teeth
Following the in-service automobile accident, the veteran had
to have teeth numbers 2 through 9 extracted. The veteran has
argued he warrants a compensable evaluation for this
disability.
The veteran's service-connected missing teeth are evaluated
under Diagnostic Code 9913. Under that Diagnostic Code, a
noncompensable evaluation is warranted when the loss of
masticatory surface can be restored by a suitable prosthesis.
See 38 C.F.R. § 4.150, Diagnostic Code 9913. In order to
warrant a compensable evaluation, there would need to be
evidence that the lost masticatory surface cannot be replaced
by suitable prosthesis.
The Board finds the preponderance of the evidence is against
a finding that the veteran's missing teeth cannot be replaced
by suitable prosthesis. In fact, the only evidence of record
that addresses this specific issue is evidence against a
finding that the veteran is entitled to a compensable
evaluation. For example, a March 2000 VA examination report
shows that the veteran has dentures. A March 2003 letter
from a private dentist indicates that the veteran has
dentures. In an October 2004 VA examination report, the
examiner made a specific finding that the veteran's missing
teeth could be replaced by a prosthesis. There is no
competent evidence to refute these findings. Thus, a
compensable evaluation for missing teeth is not warranted.
See id.
The Board also has considered whether the case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1). Although the veteran has argued that he is
undercompensated for this disability, it has not been shown
to cause average industrial impairment from the disability in
excess of that contemplated by the noncompensable evaluation
or otherwise render application of the schedular criteria
impractical, especially since the veteran has not required
frequent hospitalization from the disability. Thus, referral
of this case for extra-schedular consideration is not
warranted. See Bagwell, 9 Vet. App. at 338-9; Floyd, 9 Vet.
App. at 96; Shipwash, 8 Vet. App. at 227.
C. Meniere's Disease
The veteran argues that he warrants an evaluation in excess
of 30 percent for Meniere's Disease. He also argues that
this disability has been misdiagnosed in that he feels that
such diagnosis ignores his real problem associated with this
diagnosis.
The service-connected Meniere's Disease is evaluated under
Diagnostic Code 6205. Under Diagnostic Code 6205, a 30
percent rating is assigned for Meniere's syndrome with
hearing impairment with vertigo less than once a month, with
or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6205.
A 60 percent evaluation is in order when there is hearing
impairment with attacks of vertigo and cerebellar gait
occurring from one to four times a month, with or without
tinnitus. Id. A 100 percent rating is warranted when there
is hearing impairment with attacks of vertigo and cerebellar
gait occurring more than once weekly, with or without
tinnitus. Id. It is noted that Meniere's syndrome may be
rated either under these criteria or by separately evaluating
vertigo (as a peripheral vestibular disorder), hearing
impairment, and tinnitus, whichever method results in a
higher overall evaluation. Id. at Note. An evaluation for
hearing impairment, tinnitus, or vertigo may not be combined
with an evaluation under Diagnostic Code 6205. Id.
Under Diagnostic Code 6204, peripheral vestibular disorders
are assigned a 10 percent evaluation for occasional dizziness
and a maximum 30 percent evaluation for dizziness and
occasional staggering. 38 C.F.R. § 4.87, Diagnostic Code
6204 (2006). Objective findings supporting the diagnosis of
vestibular disequilibrium are required before a compensable
evaluation can be assigned under this Diagnostic Code. Id.
at Note. Hearing impairment or suppuration shall be
separately rated and combined. Id.
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against the
award of an evaluation in excess of 30 percent for Meniere's
Disease if evaluating the disability under Diagnostic Code
6205. In order to attain a higher rating under Diagnostic
Code 6205, the facts must approximate with the criteria for a
60 percent rating, namely, hearing impairment with attacks of
vertigo and cerebellar gait occurring more than once weekly,
with or without tinnitus. 38 C.F.R. § 4.87, Diagnostic Code
6205. The Board finds that there is a lack of credible
evidence that the veteran has attacks of vertigo and
cerebellar gait occurring more than once weekly. For
example, in March 2000, the veteran reported having frequent
dizzy spells. In March 2003, he stated he had vertigo daily
with "occasional falls." A September 2005 private medical
record shows that Dr. JTD stated the veteran had chronic
vertigo, but there was no mention of a cerebellar gait. At a
January 2006 VA examination, the veteran reported having
vertigo or dizziness and stated that it occurred daily. No
medical professional has indicated that the veteran has a
cerebellar gait. Thus, the preponderance of the evidence is
against a finding that the veteran warrants an evaluation in
excess of 30 percent under Diagnostic Code 6205. See id.
However, as noted above, the veteran's disability could be
evaluated under Diagnostic Code 6205 or possibly evaluated
where the hearing loss, tinnitus, and vertigo are evaluated
separately. The Board finds that the evidence supports a
finding that the veteran would warrant a combined evaluation
of 40 percent if his symptoms associated with the service-
connected Meniere's Disease are evaluated separately. The
veteran has complained of constant dizziness associated with
Meniere's Disease and that he has occasionally staggered,
which has required him to be in a wheelchair. In a January
2006 VA examination report, the examiner stated the veteran
had a staggering gait. Thus, the veteran's symptoms would
fall under the 30 percent evaluation under Diagnostic Code
6204. See 38 C.F.R. § 4.87, Diagnostic Code 6204. The
30 percent evaluation is the maximum evaluation under this
Diagnostic Code, and thus a higher evaluation is not
available. See id.
The veteran has been diagnosed with bilateral tinnitus, which
would warrant a 10 percent evaluation under Diagnostic Code
6260. See 38 C.F.R. § 4.87, Diagnostic Code 6260. This is
the maximum evaluation under this Diagnostic Code, and thus a
higher evaluation is not available. See id.
As to hearing loss, evaluations of bilateral defective
hearing range from noncompensable to 100 percent and are
based on organic impairment of hearing acuity as measured by
the results of controlled speech discrimination tests,
together with the average hearing threshold level as measured
by pure tone audiometry tests in the frequencies of 1,000,
2,000, 3,000, and 4,000 Hertz. To evaluate the degree of
disability from service-connected hearing loss, the Rating
Schedule establishes eleven auditory acuity levels, ranging
from numeric level I for essentially normal acuity to numeric
level XI for profound deafness. 38 C.F.R. §§ 4.85, 4.86.
The Court has noted that disability ratings for hearing
impairment are derived by the mechanical application of the
rating schedule to the numeric designations assigned after
audiometric evaluations are rendered. Lendenmann v.
Principi, 3 Vet. App. 345 (1992). An examination for hearing
impairment for VA purposes must be conducted by a state-
licensed audiologist and must include a controlled speech
discrimination test (Maryland CNC) and a puretone audiometry
test. 38 C.F.R.§ 4.85(a). Based upon the hearing loss shown
in the audiological evaluations during the appeal period, the
veteran's hearing loss would warrant no more than a
noncompensable evaluation. See 38 C.F.R. § 4.85.
In sum, the Board finds that a 30 percent rating is warranted
for the veteran's vestibular disorder, a 10 percent rating is
warranted for bilateral tinnitus, and a noncompensable rating
is the appropriate evaluation for bilateral hearing loss.
The combined disability rating from these three disabilities
is 40 percent, which exceeds the current rating of 30 percent
for Meniere's Disease. See 38 C.F.R. § 4.25 (2006). Thus,
the Board finds that separately evaluating the symptoms of
Meniere's Disease results in a higher overall rating for the
disability. Accordingly, the veteran's claim for an
increased rating for Meniere's Disease is granted. An
evaluation in excess of 40 percent, however, is not
warranted. As noted above, the 30 percent and 10 percent
ratings for peripheral vestibular disorders and tinnitus are
the maximum evaluations for those disabilities, respectively.
The veteran's hearing loss is not compensable in degree. The
Board finds that the 40 percent combined evaluation should be
awarded as of the date service connection was granted-July
28, 1998.
The Board also has considered whether the case should be
referred to the Director of the VA Compensation and Pension
Service for extra-schedular consideration under 38 C.F.R. §
3.321(b)(1). Although the veteran has argued that he is
undercompensated for Meniere's Disease, it has not been shown
to cause average industrial impairment from the disability in
excess of that contemplated by the combined 40 percent
evaluation or otherwise render application of the schedular
criteria impractical, especially since the veteran has not
required frequent hospitalization from the disability. Thus,
referral of this case for extra-schedular consideration is
not warranted. See Bagwell, 9 Vet. App. at 338-9; Floyd, 9
Vet. App. at 96; Shipwash, 8 Vet. App. at 227.
III. Special Monthly Compensation
The veteran asserts he warrants special monthly compensation
because he needs assistance with all his daily needs and
cannot leave the house.
If a veteran, as the result of service-connected disability,
is so helpless as to be in need of regular aid and
attendance, an increased rate of compensation (special
monthly compensation) is payable. 38 U.S.C.A. § 1114(l); 38
C.F.R. § 3.350(b). The following will be accorded
consideration in determining the need for regular aid and
attendance: Inability of claimant to dress or undress
himself, or to keep himself ordinarily clean and presentable;
frequent need of adjustment of any special prosthetic or
orthopedic appliance which by reason of the particular
disability cannot be done without aid (this will not include
the adjustment of appliances which normal persons would be
able to adjust without aid, such as supports, belts, lacing
at the back, etc.); inability of claimant to feed himself
through loss of coordination of upper extremities or through
extreme weakness; inability to attend to the wants of nature;
or incapacity, physical or mental, requiring care or
assistance on a regular basis to protect the claimant from
hazards or dangers incident to his daily environment. It is
not required that all of the disabling conditions enumerated
in this paragraph be found to exist before a favorable rating
may be made. The particular personal functions which the
veteran is unable to perform should be considered in
connection with his condition as a whole. It is only
necessary that the evidence establish that the veteran is so
helpless as to need regular aid and attendance, not that
there be a constant need. Determinations that the veteran is
so helpless, as to be in need of regular aid and attendance,
will not be based solely upon an opinion that the claimant's
condition is such as would require him to be in bed. They
must be based on the actual requirement of personal
assistance from others. 38 C.F.R. § 3.352 (a).
Special monthly compensation may also be paid if a veteran
has a single service-connected disability rated 100 percent
and either (1) has additional service-connected disability or
disabilities ratable at 60 percent, separate and distinct
from the 100 percent service-connected disability and
involving different anatomical segments or bodily systems; or
(2) is permanently housebound by reason of service-connected
disabilities. Permanently housebound means the veteran is
substantially confined, as a direct result of service-
connected disabilities, to his dwelling or the immediate
premises (or, if institutionalized, to the ward or clinical
areas), and it is reasonably certain that the disabilities
and resultant confinement will continue throughout his
lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).
The veteran is service-connected for depressive disorder,
evaluated as 70 percent disabling; limited motion of the
temporomandibular articulation, evaluated as 40 percent
disabling; Meniere's Disease, evaluated as 40 percent
disabling, combined; facial scars, evaluated as 10 percent
disabling; and los of tongue tissue, missing teeth,
diverticulum of esophagus, and erectile dysfunction, each
evaluated as noncompensably disabling. These evaluations
combine to 90 percent. See 38 C.F.R. § 4.25. The veteran is
in receipt of a total rating for compensation based upon
individual unemployability as of 1996.
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against a
finding that the veteran is so helpless as to be in need of
regular aid and attendance within the meaning of the
applicable law and regulation. For example, a March 2003 VA
examination report shows that the examiner noted the veteran
was not permanently bedridden. He stated the veteran was
able to manage his benefits. His eyesight was 20/25 in the
right eye and 20/200 in the left eye. He had good range of
motion of the right upper extremity and no restrictions of
the left upper extremity. The examiner stated the veteran
was able to walk with a cane in both arms. A June 2005 VA
examination report shows that the examiner found the veteran
was able to manage his benefits. He stated the veteran was
not bedridden, although he noted the veteran came to the
examination in a wheelchair. He needed assistance in getting
up from bed to ambulation and needed assistance when going
beyond the confines of the home for ambulation. However, the
veteran played on the computer and had weights he would use
for exercise at home. The examiner stated the veteran had no
functional restriction of upper extremities, he could eat by
himself, he could fasten his clothes, and was independent in
toileting activities. This is evidence against a finding
that the veteran meets the criteria to be in need of regular
aid and attendance. No medical professional has stated that
the veteran is in need of regular aid and attendance.
In terms of housebound benefits, none of the veteran's
service-connected disabilities are rated as 100 percent
disabling. Additionally, it is not shown that the veteran's
service-connected disabilities restrict him to his dwelling
or immediate premises. Both the March 2003 and June 2005
examinations noted that the veteran could leave his house and
actually did approximately once a week. Therefore, the
veteran does not meet the requirements for a finding that he
is entitled to housebound benefits. No medical professional
has stated that the veteran is restricted to his dwelling.
As the preponderance of the evidence is against the claim for
special monthly compensation based on a need for the regular
aid and attendance of another person or on account of being
housebound, the benefit-of-the-doubt-rule does not apply, and
the claim must be denied. See Gilbert, 1 Vet. App. at 55; 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
IV. Earlier Effective Date
The assignment of effective dates of awards is generally
governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless
specifically provided otherwise, the effective date of an
award based on a claim for service connection and a claim
reopened after final adjudication "shall be fixed in
accordance with the facts found, but shall not be earlier
than the date of receipt of application therefor." 38
U.S.C.A. § 5110(a) (West 2002) (emphasis added). The
implementing regulation clarifies this to mean that the
effective date of service connection and compensation based
on a reopened claim will be, "[d]ate of receipt of claim or
date entitlement arose, whichever is later." 38 C.F.R. §
3.400 (emphasis added).
Additionally, under 38 C.F.R. § 3.155(a) (2006), the veteran
or a representative of the veteran can file an informal claim
by communicating an intent to apply for one or more VA
benefits. See also 38 C.F.R. § 3.1(p) (2006). The benefit
sought must be identified, see Stewart v. Brown, 10 Vet. App.
15, 18 (1997), but need not be specific, see Servello v.
Derwinski, 3 Vet. App. 196, 199 (1992).
The RO has awarded service connection for Meniere's Disease
as being secondary to the service-connected limited motion of
the temporomandibular articulation as of July 28, 1998. On
that date, the veteran submitted a VA Form 21-4138, Statement
in Support of Claim, stating he wanted to open a claim for
tinnitus, hearing loss, chronic ear infection, and
temporomandibular joint problems. He argues that the
effective date should go back to 1985, when the evidence
showed he had vertigo.
After having carefully reviewed the evidence of record, the
Board finds that the preponderance of the evidence is against
an effective date earlier than July 28, 1998, for the award
of service connection for Meniere's Disease. The record
reflects that the veteran had filed a claim for service
connection for vertigo in September 1989, stating that it was
secondary to the jaw residuals. He also filed a claim for
increase for the service-connected limited motion of the
temporomandibular articulation. In November 1989, the RO
denied an increased rating for temporomandibular joint
syndrome, but failed to address the claim for service
connection for vertigo. In an April 1991 Memorandum, the
veteran's representative pointed out that VA had failed to
adjudicate the claim for service connection for vertigo. The
record reflects that VA had the veteran undergo a VA
examination in connection with that claim. In the April 1992
examination report, the examiner stated he could not
attribute the vague tinnitus and vertigo complaints to the
temporomandibular joint syndrome.
After the VA examination, it appears that the veteran's
claims file was lost. In February 1993, VA informed the
veteran that it did not have his claims file and was in the
process of searching for it. It asked the veteran to send
any copies of correspondence he had received from VA. In May
1993, VA informed the veteran that it had denied his claim
for compensation because he had not sent VA the information
for which it had asked. It again asked the veteran to submit
any correspondence he had from VA relating to his claims and
noted that it had asked for this information in a February
1993 letter. VA also told him he could send this information
as late as February 1994 and still be paid benefits prior to
that time. It provided the veteran with his appellate
rights.
The next time the veteran submitted an application to reopen
the claim for service connection for symptoms associated with
Meniere's Disease, in this case, it was tinnitus and hearing
loss, was on July 28, 1998. It was following this submission
that VA reopened the claim and awarded service connection for
Meniere's Disease as being secondary to the service-connected
limited motion of the temporomandibular articulation and
assigned an effective date of July 28, 1998.
Applying the law to the facts of this case, the evidence does
not support the award of an effective date earlier than July
28, 1998, for service connection for Meniere's Disease. See
38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(r) (effective date of
an evaluation and an award of compensation based on a
reopened claim will be, "[d]ate of receipt of claim or date
entitlement arose, whichever is later" (emphasis added));
Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("when a claim
to reopen is successful and the benefit sought is awarded
upon readjudication, the effective date is the date of the
claim to reopen"); Sears v. Principi, 16 Vet. App. 244, 248
("The Court thus holds that the effective-date statute,
38 U.S.C.A. § 5110(a), is clear on its face with respect to
granting an effective date for an award of VA periodic
monetary benefits no earlier than the date that the claim for
reopening was filed"). Here, the veteran had been denied
service connection for vertigo in the May 1993 rating
decision and was provided with his appellate rights. He did
not appeal the decision, and it became final. See
38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103. Thus,
the effective date cannot be prior to May 1993.
The Board has thoroughly reviewed the evidence of record
between May 1993 and July 1998 to see if the veteran filed a
claim, an informal claim, or expressed a written intent to
file a claim for service connection for Meniere's Disease or
symptoms associated with Meniere's Disease and finds nothing
in the record to support such a finding. See 38 C.F.R.
§§ 3.1(p), 3.155. The veteran submitted a VA Form 21-4138 in
October 1993, which was within one year of the May 1993
denial of his claim. However, the veteran indicated he was
seeking an increase in his service-connected psychiatric
disorder. He made no mention of Meniere's Disease or its
symptoms. In April 1996, he again submitted a VA Form 21-
4138, wherein he indicated he was seeking increased
compensation for his temporomandibular joint syndrome and
psychiatric disorder. Neither of these statements establish
an intent by the veteran to reopen his claim for service
connection for Meniere's Disease or its symptoms. See id.
The Board notes that the application of 38 C.F.R. § 3.157(b)
would not be warranted in this case, as such regulation
applies only to a distinct group of claims where service
connection has already been established. See LaLonde v.
West, 12 Vet. App. 377, 382 (1999) (where appellant had not
been granted service connection, mere receipt of medical
records could not be construed as informal claim).
For the reasons stated above, the Board finds that the
preponderance of the evidence is against an earlier effective
date for the award of service connection for Meniere's
Disease, and the benefit-of-the-doubt rule is not for
application. See Gilbert, 1 Vet. App. at 55; 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102.
V. Service Connection
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110 (West 2002). Section 3.310(a) of Title
38, Code of Federal Regulations, which applies to secondary
service connection for a disability which derives from
38 U.S.C.A. § 1110, provides:
Disability which is proximately due to or
the result of a service-connected disease
or injury shall be service connected.
When service connection is thus
established for a secondary condition,
the secondary condition shall be
considered a part of the original
condition.
38 C.F.R. § 3.310(a) (2006).
Secondary service connection may also be established for a
nonservice-connected disability which is aggravated by a
service connected disability. In this instance, the veteran
may be compensated for the degree of disability over and
above the degree of disability existing prior to the
aggravation. 38 C.F.R. § 3.310(b) (Oct. 2006); Allen v.
Brown, 7 Vet. App. 439, 448 (1995).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert, 1 Vet.
App. 49.
A. Inner ear infection
The veteran asserts that he has developed a chronic ear
infection as a result of the service-connected limited motion
of the temporomandibular articulation.
After having carefully reviewed the evidence of record, the
Board finds that the preponderance of the evidence is against
the grant of service connection for an inner ear infection as
being secondary to the service-connected limited motion of
the temporomandibular articulation. Specifically, the
veteran has failed to bring forth competent evidence of
chronic ear infection. For example, a March 2000 VA
examination report shows that the examiner found that both
ears were normal. A July 2004 VA examination report shows
that the examiner found no active ear disease or infection.
A January 2006 VA examination report shows the examiner found
no ear disease and no evidence of middle or inner ear
infection. A claim for secondary service connection requires
that a claimant bring forth evidence of a current disability
due to a service-connected disability. 38 C.F.R. § 3.310(a).
Here, there is a lack of competent evidence that the veteran
has a disability involving the ears. While the examiner in
the January 2006 VA examination report diagnosed the veteran
with otalgia, such is a diagnosis of ear pain, which fails to
establish that the veteran has a "disability" due to
disease or injury. See Sanchez-Benitez v. Principi, 259 F.3d
1356, 1361 (Fed. Cir. 2001) (pain alone, without a diagnosis
or identifiable underlying malady or condition, does not in
and of itself constitute a disability for which service
connection may be granted); 38 U.S.C.A. § 1110 (Service
connection is warranted for a "disability resulting from
personal injury suffered or disease contracted in line of
duty, or for aggravation of a preexisting injury suffered or
disease contracted in line of duty . . . ." ).
Without competent evidence of a current diagnosis of chronic
ear infection, service connection, either on a direct or
secondary basis, cannot be granted. See Brammer v.
Derwinski, 3 Vet. App. 223, 225 (1992) (Court stated
"Congress specifically limits entitlement for service-
connected disease or injury to cases where such incidents
have resulted in a disability," and held "[i]n the absence
of proof of a present disability[,] there can be no valid
claim"); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44
(1992). While the veteran has asserted that he has chronic
ear infections as a result of the service-connected limited
motion of the temporomandibular articulation, he is not
competent to provide a probative opinion on a medical matter,
to include the diagnosis of a specific disability or opinion
as to the origins of a specific disability. See Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).
Accordingly, for the reasons stated above, the Board finds
that the preponderance of the evidence is against the claim
for service connection for inner ear infection, as being
secondary to the service-connected limited motion of the
temporomandibular articulation, and the benefit-of-the-doubt
rule is not for application. See Gilbert, 1 Vet. App. at 55;
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
B. Left knee, left ankle, and left foot disabilities
The veteran alleges that on May 26, 2000, he fell out of a
van when he had an episode of vertigo and sustained a
concussion, an injury to his spine, and injuries to his left
lower extremity. He states he went to an emergency room to
be treated for his injuries at the time of the fall. The
veteran seems to imply that the concussion and the back
healed, but that he has remaining disabilities involving the
left knee, ankle, and foot, which he states are secondary to
the service-connected Meniere's Disease.
After having carefully reviewed the evidence of record, the
Board finds that the preponderance of the evidence is against
the grant of service connection for left knee, left ankle,
and left foot disabilities. The veteran has alleged he went
to an emergency room at the time of this accident; however,
he has never provided VA either with the medical records
substantiating the May 2000 fall or permission for VA to
obtain the emergency room medical records from that fall. VA
has been clear in its denial of these claims in pointing out
to the veteran that there is no objective evidence of the May
26, 2000, injury. Thus, the veteran has been put on notice
of the need to either submit the emergency room records or
provide VA with permission to obtain these records. The
Board is unwilling to concede that the veteran sustained
injuries as a result of a service-connected disability when
verification of the injury is apparently documented.
Therefore, without evidence that the veteran sustained
injuries due to a service-connected disability, the Board
finds the preponderance of the evidence is against the
claims.
Of record are statements from private physicians who indicate
that the veteran has arthritis in his left knee as a result
of this fall, which they state was caused by vertigo. The
Board has accorded such medical opinions little to no
probative value, as they are based on history reported by the
veteran, which history VA has been unable to substantiate.
See Black v. Brown, 5 Vet. App. 177 (1993) (Board is not
bound to accept medical opinions based on history supplied by
veteran, where history is unsupported or based on inaccurate
factual premises).
Additionally, while medical professionals have stated the
veteran has arthritis in his left knee, there is no competent
evidence that the veteran has current disabilities associated
with the left ankle or the left foot. See Brammer, 3 Vet.
App. at 225; Rabideau, 2 Vet. App. at 143-44. Thus,
regardless of whether the fall was conceded or not, service
connection would not be warranted for these two disabilities.
Accordingly, for the reasons stated above, the Board finds
that the preponderance of the evidence is against the claim
for service connection for left knee, left ankle, and left
foot disabilities, as being secondary to the service-
connected Meniere's Disease, and the benefit-of-the-doubt
rule is not for application. See Gilbert, 1 Vet. App. at 55;
38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
ORDER
Entitlement to an increased evaluation for dislocated jaw is
denied.
Entitlement to a compensable evaluation for missing teeth 2
through 9 is denied.
Entitlement to an initial combined evaluation of 40 percent
for Meniere's Disease is granted, subject to the controlling
regulations applicable to the payment of monetary benefits.
Entitlement to special monthly compensation based on a need
for regular aid and attendance or on housebound status is
denied.
Entitlement to an effective date earlier than July 28, 1998,
for the award of service connection for Meniere's Disease is
denied.
Entitlement to service connection for inner ear infection is
denied.
Entitlement to service connection for service connection for
left knee disability is denied.
Entitlement to service connection for a left ankle disability
is denied.
Entitlement to service connection for a left foot disability
is denied.
________________________________________
D. C. Spickler
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs